COMMENTARY: Supreme Court hands baker a victory — sort of

Justices punt on many issues in case involving cake for same-sex marriage

Las Vegas Review-Journal

June 5, 2018 - 9:00 pm

A Colorado baker won his case before the U.S. Supreme Court, but his victory may be short-lived.

In a high-profile case involving gay rights and free expression, the justices ruled 7-2 Monday that the Colorado Civil Rights Commission failed to provide a fair hearing to Jack Phillips, a Christian baker who refused to design a cake for a same-sex marriage. But the decision avoided many of the issues raised by both sides and virtually ensured that similar conflicts will again work their way to the high court.

For now, though, the justices — including two members of the court’s liberal wing — determined that members of the Colorado commission exhibited an unconstitutional hostility toward Mr. Phillips and his religious views. The opinion stopped short, however, of resolving the inherent conflict between the First Amendment and laws regarding public accommodation and discrimination.

Mr. Phillips had asked the court to recognize the subtle but very real distinction between refusing to serve a customer who shows up at a public business and declining to design and create a specific wedding cake. The baker said he considered his wedding cakes works of art — acts of expression, if you will, that are protected by the Bill of Rights. Meanwhile, attorneys for the same-sex couple argued that Colorado could compel the baker’s expression to stop him from denigrating “the dignity” of gay couples and subjecting them to “humiliation, frustration and harassment.”

The decision failed to address those arguments. But in a concurring opinion, Justice Clarence Thomas highlighted the dangers of allowing public accommodation laws to trump the First Amendment. “States cannot punish protected speech,” he wrote, “because some group finds it offensive, hurtful, stigmatic, unreasonable or undignified. … A contrary rule would allow the government to stamp out virtually any speech at will.”

Also notable was Justice Neil Gorsuch’s concurrence, in which he observed that the Colorado panel had dismissed three similar complaints brought against bakers who refused to make cakes adorned with messages opposing gay marriage. Is discrimination a one-way street that runs right to left? Would the justices hold that the state may conscript a liberal photographer to document a skinhead ceremony?

As Justice Thomas noted, quoting Justice Samuel Alito in a previous decision, “in future cases, the freedom of speech (issue) could be essential to preventing” the court’s decision legalizing gay marriage “from being used to ‘stamp out every vestige of dissent’ and ‘vilify Americans who are unwilling to assent to the new orthodoxy.’”

In the end, this conflict highlights the fissures now dividing a country in which everyone is itching for a fight. “We are in an epidemic of tactlessness, which is an absence of respect for the other side, for whoever is on that side,” wrote Peggy Noonan in The Wall Street Journal. “It is an utter lack of generosity and sensitivity. ‘Bake my cake’ is, among other things, a stunning example of lack of tact. You’re supposed to win graciously, not rub the loser’s face in it.”